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18-0378 ) Issued: June 18, 2019 U.S United States Department of Labor Employees’ Compensation Appeals Board __________________________________________ ) K.C., Appellant ) ) and ) Docket No. 18-0378 ) Issued: June 18, 2019 U.S. POSTAL SERVICE, POST OFFICE, ) Painesville, OH, Employer ) __________________________________________ ) Appearances: Case Submitted on the Record Alan J. Shapiro, Esq., for the appellant1 Office of Solicitor, for the Director DECISION AND ORDER Before: PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge VALERIE D. EVANS-HARRELL, Alternate Judge JURISDICTION On December 18, 2017 appellant, through counsel, filed a timely appeal from an August 31, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.4 1 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 The Board notes that appellant’s surname has changed since the filing of the appeal. 3 5 U.S.C. § 8101 et seq. 4 The Board notes that, following the August 31, 2017 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. ISSUE The issue is whether appellant has met her burden of proof to establish that the acceptance of her claim should be expanded to include L5-S1 retrolisthesis and herniated disc, causally related to her January 18, 2013 employment injury. FACTUAL HISTORY On January 19, 2013 appellant, then a 39-year-old transitional city carrier, filed a traumatic injury claim (Form CA-1) alleging that on January 18, 2013 she strained her lower back when her postal vehicle was rear-ended while in the performance of duty. She stopped work. OWCP accepted appellant’s claim for sprains of the cervical, lumbar, and thoracic spine, right elbow and forearm, and right shoulder and upper arm. It paid appellant wage-loss compensation on the periodic rolls, effective May 5, 2013. OWCP received several diagnostic examination reports of appellant’s lumbar spine. A January 18, 2013 lumbar spine magnetic resonance imaging (MRI) scan report noted a normal lumbosacral spine. An April 23, 2013 lumbar spine MRI scan report showed minimal lower lumbar spondylosis at L4-5 and L5-S1. Appellant received medical treatment from Dr. Paul C. Hanahan, who specializes in occupational and family medicine. In a May 20, 2013 note, Dr. Hanahan noted that an April 23, 2013 lumbar spine MRI scan showed additional diagnoses of L5-S1 retrolisthesis and disc herniation. He related that on January 18, 2013 appellant was driving her postal truck and was hit from behind by another vehicle. Dr. Hanahan explained that appellant sustained a “whiplash-type injury to the spine.” He opined that the additional diagnosis of L5-S1 retrolisthesis and disc herniation were directly and causally related to the January 18, 2013 employment injury. In progress notes beginning May 21, 2013, Dr. Hanahan continued to treat appellant for cervical, thoracic, and lumbar spine strains secondary to whiplash injury and for lumbar disc bulge with left leg radiculopathy. In a June 14, 2013 report, Dr. Jason Eubanks, a Board-certified orthopedic surgeon, described the January 18, 2013 employment injury and related appellant’s complaints of continued back pain radiating into her left hip and buttocks and left lower extremity numbness and tingling. Upon physical examination, he observed no pain with range of motion of her bilateral hips. Straight leg raise testing showed discomfort in the back left side and negative on the right side. Dr. Eubanks discussed appellant’s diagnostic testing. He reported that appellant did not have any evidence of disc herniations on the MRI scans which would require surgical intervention. On October 9, 2013 OWCP referred appellant, along with a statement of accepted facts (SOAF) and a copy of the case record, to Dr. Robert Leb, a Board-certified orthopedic surgeon, for a second opinion evaluation to determine whether appellant continued to have residuals and remained disabled due to her accepted January 18, 2013 employment injury and whether the acceptance of her claim should be expanded to include additional conditions. In a November 12, 2013 report, Dr. Leb discussed the history of appellant’s January 18, 2013 employment injury and noted her accepted conditions of thoracic, lumbar, and cervical sprain and right shoulder and elbow sprains. He related that an April 23, 2013 lumbar spine MRI scan showed minimal lumbar spondylosis at L4-5 and L5-S1 and a small disc herniation at the L5-S1. Dr. Leb provided examination findings of appellant’s right shoulder, right elbow, cervical spine, thoracic spine, and 2 lumbar spine. He diagnosed retrolisthesis at L5-S1 and a disc herniation not impinging on the thecal sac or nerve root. Dr. Leb opined that this condition was likely directly and proximately related to the work injury that she sustained on January 18, 2013. In a July 24, 2014 supplemental report, Dr. Leb reviewed appellant’s history and provided examination findings. He reported that appellant’s right shoulder and right elbow sprains had resolved, but that appellant continued to have minimal symptoms related to her cervical, thoracic, and lumbar sprains. Dr. Leb indicated that appellant could work part time with restrictions. Appellant underwent another lumbar spine MRI scan on February 5, 2015, which showed degenerative disc disease and spondylosis at L4-5 and L5-S1 with no discrete focal disc herniation, central canal stenosis or significant neural foramina narrowing seen throughout the lumbar spine. In a February 12, 2015 progress note, Dr. Todd B. Francis, a Board-certified family practitioner, reported that there was no clear reason as to why appellant was having her current symptoms. He related that there was no MRI scan evidence of disc herniation or lumbosacral pathology. In a March 18, 2015 note, Dr. Leonard Weinberger, a Board-certified neurologist, reviewed appellant’s history, provided examination findings, and diagnosed cervical, thoracic, and lumbar sprains. In September 2015, OWCP initiated another second opinion referral to Dr. Richard Deerhake, a Board-certified orthopedic surgeon, for an opinion on whether appellant continued to suffer residuals or disability from work due to her January 18, 2013 employment injury. In an October 14, 2015 report, Dr. Deerhake noted the history of injury, his review of the medical records and SOAF, and presented examination findings. He diagnosed lumbar and neck sprains. Dr. Deerhake reported that there were no positive, objective findings of thoracic, right elbow, or right forearm sprains. In letters dated November 4 and December 12, 2015, Dr. Hanahan indicated that he reviewed Dr. Deerhake’s October 14, 2015 report. He asserted that Dr. Deerhake did not emphasize appellant’s severe pain of the lower back with radiation down the left leg and symptoms consistent with lumbosacral neuritis and neurogenic bladder. Dr. Hanahan related that the accepted conditions of cervical and lumbar sprains should have resolved within three months of occurrence. He indicated that the fact that appellant’s neck and lower back pain, as well as bowel and bladder incontinence and perianal numbness, still existed eliminated the diagnosis of sprain and required an additional diagnosis. Dr. Hanahan opined that the “work[-]related injury appellant incurred on [January 18, 2013] is directly and causally related to her current symptoms of neck and low back pain with bowel and bladder incontinence and perianal numbness.” By letter dated November 20, 2015, counsel requested that the acceptance of appellant’s claim be expanded to include L5-S1 retrolisthesis and disc herniation as causally related to the January 18, 2013 employment injury. He included a copy of Dr. Leb’s November 12, 2013 second opinion report. OWCP advised appellant in a December 3, 2015 letter that the evidence submitted was insufficient to establish that she sustained additional conditions causally related to the January 18, 2013 employment injury. It requested that she submit additional medical evidence to establish additional diagnosed conditions causally related to the January 18, 2013 employment injury. By separate letter dated December 3, 2015, OWCP also requested that Dr. Deerhake provide a 3 supplemental report regarding whether appellant sustained L5-S1 retrolisthesis and disc herniation as a result of the January 18, 2013 employment injury. In a December 15, 2015 supplemental report, Dr. Deerhake described the January 18, 2013 employment injury and noted that lumbar x-rays were taken on the date of accident and interpreted as normal. He noted that diagnostic testing did not show lumbar spondylosis at L4-S1 and disc herniation until April 23, 2013. Dr. Deerhake reiterated his examination findings from his October 14, 2015 evaluation. He opined that, based on the diagnostic tests and history of injury, there was no medical evidence to support a causal relationship between the diagnoses of L5-S1 retrolisthesis and disc herniation and the January 8, 2013 employment injury.
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